Maryland Estate Litigation

Tag: disability

A Primer on Guardianships – Part Four – Understanding Incapacity

by David A. (Andy) Hall

Clients often talk to us about whether someone is competent to execute legal documents such as a will or a power of attorney (POA).  Talk of competency is generally putting the cart before the horse.  Competency is a legal term, but it has to do with whether a person lacks legal competence, e.g., they are a minor, or they have been adjudicated incompetent.[1]

From an estate planning perspective particularly where the goal is avoid a guardianship, the question is whether someone has capacity to make decisions or execute planning documents. [2]  The capacity required to execute a will is the ability of the testator/testatrix to understand the nature of their assets and the objects of their bounty.[3]  Put more simply, does a person know who their children and/or grandchildren are, and do they know what “stuff” they own.  In order to devise[4] property to a relative, a testator/testatrix[5] needs to know the property they have and who they are giving the property.  It makes sense from an intrinsic level that you need to know these two points in order to give something away otherwise someone could give away things that are not theirs to people they do not know, which is generally not how people approach estate planning.  All in all, the capacity needed to execute a will is pretty low.  A will, however, will not obviate the need for a guardianship.  Additional incapacity planning is required.

The capacity required to execute a trust is the same as that required to execute a contract, which requires that the party must understand the nature of the business conducted. For contracts, the more complicated the contract, then the higher the level of understanding required to be able to execute the contract.   This holds true for advance medical directives (AMD) and POAs.  Overall, the capacity to execute a will is less than the capacity required to execute a trust or other incapacity planning documents (AMDs and POAs).

Incapacity planning documents are important in the realm of avoiding guardianships.  Most of these documents have explicit nominations for persons to serve as guardian should the need arise, but they also serve the role of allowing an agent to make or communicate decisions for a principal during a period of incapacity.  Without these documents, it may become necessary for a relative to file for guardian of the person and/or property.

A guardian of the person may be appointed upon the following grounds:

Grounds. – A guardian of the person shall be appointed if the court determines from clear and convincing evidence[6] that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs, and that no less restrictive form of intervention is available which is consistent with the person’s welfare and safety.

Estate & Trusts § 13-705(b).  There are three operative components of the grounds for filing a guardianship of the person.  First, the alleged disabled lacks “sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”  Id.  Second, this is due to “mental disability, disease, habitual drunkenness, or addiction to drugs.” Id. Third, there is “no less restrictive form of intervention.”  Id.

Focusing on the first basis, because of the person’s mental disability or other cognitive impairment, the person lacks capacity to make or communicate decisions.  This covers someone in a temporary or medically induced coma to someone who’s dementia has progressed to a point where they can no longer interact with others in any normal sense of the expression.  It can also cover someone who is habitually drunk or addicted to drugs.[7]  A guardianship of the person is necessary because the alleged disabled did not have proper incapacity planning documents in place and are unable to sign documents appointing a healthcare agent to make decisions on their behalf.  Physically a person may still be able to sign and there are many cases brought where someone has been unduly influenced to sign particular estate planning or ancillary documents, but that does not mean that they possess the contractual capacity in order to execute an AMD or POA.

If after a court finds the alleged disabled is unable to make or communicate decisions due to mental disability or other cognitive impairment and there is no less restrictive alternative, then the court will appoint and guardian of the person.  After the appointment of a guardian, then a person has been legally adjudicated incompetent to make legal decisions.  Thus, it is after a long process that the conversation about whether someone is competent is appropriate from a legal perspective.

Filing for guardianship may be a difficult process with unique challenges for those who do not handle these on a regular basis.  If you believe that you need to file for guardianship, then call for a free consultation.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042


[1] In criminal law, competency is the ability of the accused to stand trial and participate in one’s defense.

[2] Note that this distinction is muddled by the Maryland Code, specifically, Estates & Trusts Art. § 4-101 states “Any person may make a will if he is 18 years of age or older, and legally competent to make a will.” (emphasis added).

[3] Sellers v. Qualls, 206 Md. 58, 66, 110 A.2d 73 (1954).

[4] Give away pursuant to a will. See Black’s Law Dictionary [Third Pocket Edition] p. 207 (2006).

[5] A person executing a will.

[6] “To be clear and convincing, evidence should be ‘clear’ in the sense that it is certain, plain to the understanding, and unambiguous and ‘convincing’ in the sense that it is so reasonable and persuasive as to cause you to believe it.” Maryland Civil Pattern Jury Instructions § 1:13 (2013).

[7] Note the language used in the code, it is not referring to someone that has a drinking problem or casually uses drugs.  Also, the use of the intoxicants must prevent them from making or communicating decisions, not necessarily making poor decisions.

Investing in Family

by barrettrkingpc

Throughout the years, we are constantly taught, admonished, reminded that we must invest. We must invest in our education by focusing on our studies or by taking student loans to complete our degree so that we can increase our earning potential and job satisfaction. We are taught that we must invest in our retirement by saving a portion of our earnings in an IRA or 401(k). We eventually, for those of us who have them, invest in our children by saving for their own education and by making sure to catch their baseball or field hockey games even if it means going back to the job or office and pulling a late night as soon as the game ends.

Looking back, as teenagers we start our flight from the nest and comforting wing of our parents or guardians with our desire to establish independence. An important part of our passage into adulthood is separating ourselves from those who invested in us so that we can invest in ourselves. And, before we know it, our parents have aged into retirement. To your eyes, are they enjoying themselves? Do they travel? Do they engage in hobbies? Are they experiencing what you grew up hearing them say they would hope to experience in retirement? Do they get to spend time with you or with the grandchildren? Are they getting to relish in the satisfaction of seeing you thrive on their investment and sacrifice in you?

Eventually, the caregiver becomes the cared for. It is worth talking to your parent or guardian about long term care insurance or whether they saved enough for retirement to self-insure for anticipated lifetime medical and long term care expenses. It can affect your ability to invest in your own children or in your own retirement if you have to take time away from work or your young family to become a caregiver or untangle a legal morass where your parents did not properly plan.

Help your parents plan for themselves. You are a major part of your parents’ life story and their future. We spend such a large part of our lives doing the things we do not want to do – chores, commuting, planning, even sleeping – that we should truly enjoy the small moments. And one way to ensure you and those who invested in you will get to do just that is to talk about estate planning and investing for the years to come.

Barrett R. King, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042

A Primer on Guardianships – Part Two – Guardianship of the Person

by David A. (Andy) Hall

Many times clients will come for an appointment with an elder law attorney because their spouse or parent is no longer able to communicate decisions about their health or person.  This can be the result of a progressive condition such as Alzheimer’s disease, or from a sudden onset, such as a fall resulting in a traumatic brain injury (“TBI”).  The consequence can be the same if the alleged disabled person (“ADP”) does not have a healthcare power of attorney (“POA”) or advance medical directive (“AMD”) in place.  Many Americans do not have incapacity planning documents.

A healthcare POA or AMD allows the person nominated to serve as the agent for the ADP.  This means that the agent can make healthcare and other personal decisions for the person that is no longer able to communicate those decisions.  The most common context is making decisions about healthcare matters, i.e., whether to select a certain course or treatment, or whether to decline treatment because the ADP has made their wishes known regarding when they no longer want treatment.

Without this document, then a loved one can make decisions for the ADP pursuant to the Maryland Health Care Decisions Act as codified in Md. Code, Health Gen. Art. §5–605.  Where the ADP has not nominated a person, then after two physicians determine that the person can no longer make decisions for himself, then the following people may serve as surrogate (in priority of the order listed):

  • A guardian for the patient, if one has been appointed;
  • The patient’s spouse or domestic partner;
  • An adult child of the patient;
  • A parent of the patient;
  • An adult brother or sister of the patient; or
  • A friend or other relative of the patient who meets the requirements

Id. While this statutory recognition is great for ad hoc or crisis situations, it may not be a viable long term solution for clients.  Sometimes the ADP’s illness will drive them to fight against decisions which are objectively being made in their best interests.  Then the loved one in that situation will want the imprimatur of a court order.

The Circuit Court in the Maryland County where the ADP resides or is admitted to receive medical treatment is the proper venue for filing for a guardianship and it has the authority to appoint a guardian.  Md. Rule 10-201; Estates & Trusts § 13-704(a)(2).  The Petition is the document whereby a client (through her attorney) requests that the court appoint someone as guardian.  Among other basic informational items, the Petition will need to include: a description of less restrictive alternatives to guardianship that have been attempted and failed; facts as to the need for a guardianship; and two certificates signed by medical doctors (or one can be signed be an licensed psychologist or licensed clinical social worker) attesting to the ADP’s need for a guardianship.  The timing of the certificates is important as one needs to be completed within 21 days of filing the petition.  A seasoned guardianship attorney will give you a checklist of the required documents and information in order for the Petition to be accepted by the Court.

The Petitioner (the one filing for guardianship) has to meet the burden of proving that the ADP:

  • Lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person
  • Because of any mental disability, disease, habitual drunkenness, or addiction to drugs,and
  • That no less restrictive form of intervention is available which is consistent with the person’s welfare and safety

Estates & Trusts § 13-705.

The Court will appoint an attorney for the ADP, and it is very likely that the court appointed attorney will be paid out of the ADP’s assets.  For a married couple, this can mean that the two parties will be paying for both sets of attorney’s fees.  It can seem counter-intuitive to have to pay for an attorney to fight against you, but a guardianship seeks to take away the inalienable right of self-determination regarding one’s person.  A court will not do so lightly.

Consult with your fiduciary litigation attorney to go over the options regarding a loved one who can no longer make decisions for themselves and has not executed incapacity planning documents.  If you have not already done so, then consult with an estate planning attorney to prepare for incapacity.  It is truly a case where, as Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.”

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042